Reed v. King & King , 23 Iowa 500 ( 1867 )

Lowe, Ch. J.

1. moutgaot: aucedby fraud: partnership. Among the facts found by the court, was that the defendant, John King, at the date of the dissolution and settlement was indebted to the firm for goods received and money col- ■ . . lected and not accounted tor, m the sum ox $689.89, when he had only charged himself on the books with the sum of $290.29, making a difference of $399.60, and that this fact was fraudulently concealed by the defendant, and that inasmuch as the negotiation was made upon the basis, that the defendant’s indebtedness was only $290.29, that he should hold the mortgage unsatisfied to the extent of the difference in the two amounts, and render a judgment of foreclosure for the same.

s__ tasband and wife. So far as this judgment is a general one against Jane King, the wife, who had not signed the note, but only given a mortgage security for the payment of ^he <jebt, it is erroneous and should be modified so as to limit her liability to the value of the mortgaged premises.

In other respects we find no objections to the decision of the court upon the facts, an-inspection of which, as found, will show that no injustice has been done the appellant, while upon the other hand no more than justice has been awarded to the plaintiff. That the latter could recover for the fraud practiced upon him without rescinding the contract and offering to return the goods purchased, we suppose will not admit of much question.

We shall therefore remand the cause, that the same judgment may be rendered with the modification above suggested, and that the cost of this appeal be equally paid by plaintiff and the defendant, John King.

Affirmed as modified.